Kifleyesus (Migration)

[2022] AATA 3572

Kifleyesus (Migration) [2022] AATA 3572 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Abeba Afewerki Kifleyesus

VISA APPLICANT:  Mrs Hdat Tekeste Teweldemedhin

CASE NUMBER:  1902403

HOME AFFAIRS REFERENCE(S):          BCC2018/5344735

MEMBER:Donna Petrovich

DATE:12 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (class FA) Visitor (Sponsored Family) subclass 600 visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 12 August 2022 at 11:47am

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – subclass 600 (Visa) – Sponsored Family stream – provided credible evidence of her family life – visa applicant’s strong desire to visit her eldest daughter – visa applicant genuinely intends to stay temporarily in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 600.211, 600.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 26 November 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly cl 600.211 requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused the visa grant on the basis that the visa applicant did not meet cl 600.211.  This is because the visa applicant had not given an indication of the presence of family members in her home country of Eritrea.  Nor had the visa applicant provided documentation supporting the claimed familial relationship between her and the sponsor.  The visa applicant claims that the sponsor is her daughter. Therefore, the delegate was not satisfied that the visa applicant had sufficient incentive to return home within the valid visa period.

   Background

5. The visa applicant is a seventy-five (75) year old Eritrean woman.  She has applied to visit her daughter and granddaughter in Australia for a period of one (1) year.  The daughter (sponsor/review applicant) has undergone a divorce, causing her emotional distress.  She has not seen her mother for some time and would enjoy spending some time with her.

6. The visa applicant is the mother of two (2) married sons who serve in the military.  Their wives and children live on the visa applicant’s rural property growing wheat, corn and barley.  They also raise livestock.  They employ labour for the majority of the farm work.  This is because the visa applicant’s sons are away, unable to work the land, only coming home when on leave from military service.

7. The Tribunal heard that the visa applicant is not literate.  She was quite young herself when her daughter was born.  At that time, birth records were not kept.  She has no internet.  Nor does she have an understanding of how to send any written material, if available, as evidence to the Tribunal to prove relationships or other details.      

8. The review applicant appeared before the Tribunal on 12 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mrs Hdat Tekeske Tweldmedhim. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether cl 600.211 is met.  This clause requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

11. The visa applicant seeks the visa for the purposes of visiting her daughter and granddaughter.  The visa applicant has not seen them for many years. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether they have complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

13. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

14. The Tribunal can find no evidence of non -compliance as the visa applicant has not travelled outside her home country previously. The Sponsor in evidence told the Tribunal that she would like other members of her family to visit her.  Thus, she does not want to do anything to cause damage to her chances of doing that through non- compliance. 

15. The Tribunal has considered the evidence given at the hearing, together with the visa applicant’s age.  The Tribunal is satisfied that she is very unlikely to seek work or engage in additional study or training in Australia.  The visa applicant told the Tribunal that she is illiterate.  Her literacy ability, age [seventy-five (75)] and previous history, suggests that she would not pursue either work or study whilst in Australia. Consequently, the Tribunal places some weight in favour of the visa applicant.

16. The applicant spoke enthusiastically of her farm, how good the growing season had been due to the rainfall, her grandchildren and daughter-in-laws (who live with her on her farm).  She expressed her desire to visit her daughter, but to return home before the year was over.  This is because she would miss her sons, their families and her farm (the running of which is her responsibility).

17. The visa applicant told the Tribunal that she has no written proof that the sponsor is in fact her daughter because birth records were not kept when the sponsor was born.  In any case, she has no understanding of the internet or how to send written material if it in fact existed.  The Tribunal, in considering the visa applicant’s lack of literacy and humble lifestyle, concludes that the provision of written relationship and identity evidence, is not possible. Therefore, the Tribunal has no way of requesting further material as it is probable that such evidence does not exist. The Tribunal is unable to place weight in this regard. 

18. The Tribunal has considered the circumstance of the visa applicant and is satisfied that she provided credible evidence of her family life.  She enthusiastically spoke about her farm, her love for her home, and life with her family and grandchildren. The Tribunal places some weight in favour of the visa applicant in this regard.      

19. The Tribunal has also considered all other relevant matters (cl 600.211(c)). The Tribunal has given weight to the visa applicant’s strong desire to visit her eldest daughter, who she misses.  Also, the sponsor daughter misses her mother (the visa applicant).  The Tribunal heard that they would like to spend some time together.  The Tribunal also heard that the Sponsor wants other family members to visit Australia and seeks to maintain an unblemished record in this regard.  It is important to the Sponsor to be able to sponsor other family members to Australia.  This is an incentive for her to ensure that her mother, the visa applicant, does not overstay her visa.  The Tribunal finds that the Sponsor will ensure that her mother does not overstay her visa in Australia.

20. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted and finds that the requirements of cl 600.211 are met.

    DECISION

21. The Tribunal remits the application for a Visitor (class FA) Visitor (Sponsored Family) subclass 600 visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Donna Petrovich
    Member